BEFORE THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

--IN THE MATTER OF--

JOSEPH SHINE ....................................................PETITIONER

VERSUS

UNION OF INDIA ................................................... RESPONDENT

MOST RESPECTFULLY SUBMITTED BEFORE THE HOUNARABLE CHIEF JUSTICE AND OTHER
JUDGES OF SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF PETITIONER DRAWN AND FILED BY THE COUNSELS FOR

THE PETITIONER.

Submitted to Submitted by

R.C Singh sir Shraddha Katiyar

Guest faculty Lucknow University. Neha
Kush Kharwar
LLB( Hons.) Semester 8
 MEMORIALON BEHALFOF THE PETITIONER

TABLE OF CONTENTS

[1]. LIST OF ABBRIVATIONS…………………………………………………………………………………..

[2]. INDEX OF AUTHORITIES………………………………………………………………………………….

[3]. STATEMENTOF JURISDICTION……………………………………………………………………….

[4]. STATEMENTOF FACTS…………………………………………………………………………………..

[5]. STATEMENTOF ISSUES………………………………………………………………………………….

[6]. SUMMARYOF ARGUMENTS…………………………………………………………………………

[7]. ARGUMENTSADVANCED………………………………………………………………………………
 MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF BOOKS REFERRED

S.NO BOOK TITLE

1. Dr. J S Pandey, Constitutional Law of India, 54th Edition
2. P.S Achuthan Pillai, Criminal Law
3. Universal’s The Constitution of India (Bare ACT)
4. S.N Mishra, The code of Criminal Procedure
5. K D Gaur, Textbook on Indian Penal Code
6.

Online Reference
1. www.indiankanoon.or g
2. www.livelaw.i n
3. www.lawotopus.co m
4. www.scconline.co m
5. www.lawaudiance.co m
6. www.Journal.indianlegalsolution.com
 MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF FACT

In February 2016, the Hon’ble President of India had called for a thorough revision
of the Indian Penal Code. Archaic provisions of the Code were sought to be removed and
“The IPC has undergone very few changes in the last one hundred fifty-five years. Very
few crimes have been added to the initial list of crimes and declared punishable. Even
now, there are offences in the Code which were enacted by the British to meet their
colonial needs. Yet, there are many new offences which have to be properly defined and
incorporated in the Code.” In view of the same, it is submitted that Section 497 is also an
outdated provision, in addition to being illegal and violative of fundamental rights.

Section 497 of Indian Penal Code, 1860 states that “Whoever has sexual
intercourse with a person who is and whom he knows or has reason to believe to be the
wife of another man, without the consent or connivance of that man, such sexual
intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and
shall be punished with imprisonment of either description for a term which may extend to
five years, or with fine, or with both. In such case the wife shall not be punishable as an
abettor”.

The history of Section 497 reveals that the law on adultery was for the benefit of
the husband, for him to secure ownership over the sexuality of his wife. It was aimed at
preventing the woman from exercising her sexual agency. Thus, this section was never
conceived to benefit women. In fact, the provision is steeped in stereotypes about women
and their subordinate role in marriage. The patriarchal underpinnings of the law on
adultery become evident when the provision is considered as a whole. A person engaging
in sexual relations with the wife of another man won’t be charged for adultery if the
husband of the wife so involved gives his consent. This clearly indicates how women are
objectified in the hands of their husbands.
 MEMORIAL
ONBEHALFOFTHEPETITIONER

Section 198(2) in The Code Of Criminal Procedure, 1973 states that “no person
other than the husband of the woman shall be deemed to be aggrieved by any offence
punishable
undersection497or section498of thesaidCode:Providedthatin theabsence
of the husband, some person who had care of the woman on his behalf at the time when
such offence was committed may, with the leave of the Court, make a complaint on his
behalf”

In October 2017, Joseph Shine, a non

-resident Keralite has submit
ted this writ
petition in the nature of Public Interest Litigation, challenging the constitutionality of
Section 497 of Indian Penal Code to shield Indian Men from being punished
– for extra
maritalrelationshipsby vengefulwomenor their husbands.Also challengingthe
constitutionality of
Section198(2) of CrPC which deniesthe wife to prosecuteher
adulterous husband, reserving this power only to the husband of the woman involved in
the relationship. So, in essence a woman can neither fileadultery
a case ofnor can she be
prosecuted
underone.
 MEMORIALONBEHALFOF THEPETITIONER

STATEMENT OF ISSUES

ISSUE I :

Whether the writ petition filed by Joseph Shine challenging the constitutional validity of
Section497 of IPC and Section198(2)of CrPC brought beforethis court is maintainable?

ISSUE II :

WhetherSection497 of IPC read with Section198(2)of CrPC is unconstitutional?

ISSUE III :

Whetherthe exceptiongrantedto married womenunder section497 of IPC violatesthe

fundamentalrights of adulter guaranteedunder theIndian Constitution?
 MEMORIAL ON BEHALF OF THE PETITIONER

SUMMARY OF ARGUMENTS

Issue I : Whether the writ petition filed by Joseph Shine challenging the constitutional validity
of Section 497 of IPC and Section 198(2) of CrPC brought before this court is maintainable?

It is humbly submitted before the Hon’ble Court that the present PIL is maintainable. It is
further submitted that since there has been gross violation of Article 14,15, and 21 of the Indian
constitution, the PIL is maintainable and on account of the same relief is sought. Article 32 provides
the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by Part III of the Constitution. The right to access to the Supreme Court under Article 32 is
the Fundamental Right itself. It is contended that the petitioners have the locus standi, there is
violation of fundamental right, Supreme Court has the jurisdiction to hear the present case and
alternative remedy not a bar to maintainability.

Issue II : Whether Section 497 of IPC read with Section 198(2) of CrPC is unconstitutional?

It is humbly submitted before the Hon’ble Court that there has been gross violation of Article
14,15 and 21 of the Indian constitution. The Section is manifestly arbitrary as it treats women as
property of husband and creates unreasonable categorization between genders. The law intrudes in
the privacy of the individual and hurts the dignity of women by allowing her husband to control her
sexual activities. Also, there can’t be any segregation of valid provision from given provisions as it
would then lead to a residue having no practical application. Hence, it needs to be annulled as a
whole owing to doctrine of severability, which in this case is that if law be made gender neutral it
would no longer have any efficacy.

Issue III : Whether the exception granted to married women under section 497 of IPC violates
the fundamental rights of adulter guaranteed under the Indian Constitution?

It is humbly submitted before this Hon’ble Court that the said provision of Section 497, I.P.C.
is violative of the fundamental rights guaranteed by the Constitution of India. The exemption granted
to women is based on the notion of women being the ‘victim’ and men the ‘seducer’ which is no
longer relevant or applicable in the contemporary societal aspect. Also, the provision by completely
exempting women from punishment under adultery as an abettor discriminates against men as it puts
both men and women under similar circumstances and fault on different pedestals. The Section is in
no way protected under Article 15 (3) of the Constitution of India which does not provides for
exemption of women from criminal liability on the baseless presumption of weak status.
 MEMORIAL ON BEHALF OF THE PETITIONER

can maintain an action for judicial redress for public injury arising from breach of public duty or
from violation of some provisions of the constitution or the law and seek enforcement of such public
duty and observance of such constitutional or legal provision”.

1.1(5) However, the member of the public should not be a mere busybody or a meddlesome interloper
but one who has sufficient interest in the proceeding. In the instant matter, the petitioner is a very
close friend of the victim and have sufficient interest.

1.1(6) Furthermore, even if the petitioner in fact moved to the Court in private interest and for the
redressal of his personal grievances, or to seek his personal revenge, Court can proceed to enquire the
state of affairs of the subject of the litigation in the interest of justice and in furtherance of justice.
Individual conduct of the party would not be of any relevance when the Court entertains PIL and
construed not only provisions of any statute but also had taken into consideration the subsequent
events.(5) If the court finds the question raised to be of substantial public interest, the issue of locus
standi of the person placing the relevant facts and materials before the court becomes irrelevant. (6)

Further under the well-established doctrine of Parens Patrae, it is the obligation of the state to protect
and take into custody of the rights and the privileges of its citizens for discharging its obligations. (7)

It was made clear in Janata Dal v H.S. Chaudhary (8) that only a person ‘acting bona fide ’and
(9)

‘having sufficient public interest ’ in the proceeding of public interest litigation will have alone the
(10)

locus standi(11) but not a person for personal gain or political motive or any oblique consideration.

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest
in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the
court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but
not for personal gain or private profit or political motive or any oblique consideration.

(5) Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005).

(6) T.N. Godavarman Thirumulkpad v. UOI, , 2006 WP(C) No. 202 of 1995.
(7) Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, ¶ 35
(8) AIR 1993 SC 892 ,¶ 64
(9) Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844
“whenever there is a public wrong or public injury caused by an act or omission of the State or public authority which is contrary to the
Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such
public wrong or public injury.
(10) In Black's Law Dictionary (Sixth Edition)
Public Interest- Something in which community at large has some pecuniary interest or some interest by which their legal rights or liabilities are
affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the
matters in question. Interest shared by citizens generally in affairs of local, state or national government. See also Vineet Narain v Union of India,
AIR 1998 SC 889.
(11) In Blacks’s Law dictionary (6th Edition)
Locus standi- the right to bring an action or to be heard in a given forum.
MEMORIAL ON BEHALF OF THE PETITIONER

Therefore, locus standi of the petitioners should not be in question.

1.2 That the hon’ble supreme court of India has the jurisdiction to entertain the present PIL

1.2(1) The petitioner herein invokes the writ jurisdiction of the Hon’ble Supreme court of India under
Article 32 of the Indian constitution for issuance of an order, direction, writ in the nature of
mandamus or any other appropriate writ challenging the constitutional validity of section 497 of IPC
which describes and defines the adultery and the punishment for the offence. The petitioner herein
also challenge the constitutionality of section 198(2) of the code of criminal procedure 1973, which
contains procedure for prosecution of the offences under chapter XX of the IPC. Both these
provisions are apparently gender discriminatory and suffers from constitutional vices.

1.2(2) the credentials, motive and the object, of the petitioner is the protection of public interest.
There is neither civil, criminal no revenue litigation involving the petitioner which as or could have
legal nexus with the issues involved in the present public interest litigation. It is further submitted
that there is no adequate or efficacious alternative remedy available to the petitioner and thus this
Public interest litigation is filed.

1.2(3) Article 32 of the constitution of India provides remedies for enforcement of fundamental rights
guaranteed by part III of the constitution. Whenever there is a violation of fundamental rights, the
citizen can approach the Hon’ble Supreme Court or high court for enforcement of the same. The
article itself is a guarantor of fundamental rights and it is a fundamental right (12).

1.2(4). The implication of section 497 of IPC is that it punishes only men and not women even if the
women, the consenting party to the sexual intercourse outside the marriage prima facie, on a perusal
of this section it is found that the provision lacks gender neutral approach and is arbitrary. Section
198(2) of CrPC which prohibits the wife from filing a complaint fail the test of reasonable
classification under Article 14 of the constitution.

1.2(5) The adverse impact of section 497 of IPC Read with Section 198(2) of CrPC up on gender
justice is a great concern to be addressed and it is violative of the right of the citizen guaranteed
under Article
14,15,and 21 of the constitution. Hence, the hon’ble supreme court has jurisdiction to entertain the
matter as there is gross violation of fundamental rights guaranteed under the constitution.
1.2(6) The petition herein prefers this petition in the nature of PIL and the same squarely falls within

(12) Assam Public Works vs Union Of India AIR 2015 SC 783.

MEMORIAL ON BEHALF OF THE PETITIONER

the ambit of the guidelines prescribed in the decision of the High Court in State of Uttaranchal
v.Balwant Singh Chantal and others. The petitioner has filed the PIL with the noble aim of ensuring
gender justice.

1.2(7) In fertilizer corporation Kamgar union V. Union of India and ors (13), it was observerd that the
maintainability of a Writ petition is co-relate to the existence and violation of fundamental rights.

1.2(8) Also in people union for civil liberties V. union of india (14), a public interest litigation, for the
protection of the right to privacy was entertained by the court the instance of a voluntary association.

1.2(9) A writ of mandamus is a judicial remedy in the form of an order from a court to any
government, subordinate court, corporation or public authority to do some specific act which that
body is obliged under the law to do which is in the nature of public duty and in certain cases one of a
statutory duty.

1.2(10) In Prabodh verma V. Sate of UP (15), the apex court held that if the court finds that an act or
ordinance is unconstitutional or void, the court can declare the act or ordinance as unconstitutional
and issue a writ of mandamus to the government and its officers not to enforce the provisions of the
Act or Ordinance.

1.2(11) Further, in Murali V. Returning officer , the kerala High court held that, the legislature is
(16)

not a inferior court or tribunal, but it is a co-ordinate branch. The court is competent to examine the
constitutional validity of legislation and entitled to declare the legislation as ultra vires of the
constitution if it is found be offensive of Part III of the constitution. The court can issue a writ of
mandamus to the government not to enforce the unconstitutional legislation.

1.2(12) The purpose of this progressive writ is to remedy the defects off justice and the grant of
mandamus is therefore an equitable remedy. A writ of mandamus is issued under Article 32 when
there is an infringement of fundamental rights. Hence in the present PIL, the issuance of a writ of
mandamus Is most appropriate to redress the constitutional vices in the impugned provisions.

1.3 That there was violation of fundamental rights

1.3(1) The fundamental rights are fundamental in the sense that human liberty is predicated on their
availability and vice versa, and thus they cannot be waived. (17)

(13) AIR 1981 SC 344

(14) 1997 SCC 361
(15) AIR 1985 SC 167
(16) (2001) 1 KLT 854
(17) Basheshar Nah v. I.T. Commissioner, AIR 149, (SC 1959) ; Olga Tellis v Bombay Municipal Corporaion, AIR 180, (SC 1986) ; Nar Singh
Pal v. UOI ,3 SCC 589,(SC 2000)
MEMORIAL ON BEHALF OF THE PETITIONER

1.3(2) The fundamental rights are intended not only to protect individual rights but they are based on
high public policy. Liberty of the individual and the protection of the fundamental rights are the very
essence of the democratic way of life adopted by the constitution, and it is the privilege and the duty
of this court to uphold those rights. (18)

1.3(4) Violation of fundamental rights is sin qua non of the exercise of the right conferred by art.32.
(19)
When once the court is satisfied that the petitioner’s fundamental right has been infringed, it is not
only its right but also the duty to afford relief to the petitioner, and he need not establish either that he
has no other adequate remedy, or that he has exhausted all remedies provided by law, but has not
obtained proper redress. When the petitioner establishes infringement of his FR, the court has no
discretion but to issue an appropriate writ in his favor. (20)

1.3(5) In Bandhua Mukti morcha(21) case the supreme court endorsed the statement of J. Bhagawati
:- Art 32 does not merely confer power on the court to issue a direction order or writ for the
enforcement of the fundamental rights but it also lays a constitutional obligation on this court to
protect the fundamental rights of the people and for that purpose this court as all incidental and
acillary powers including to forge new remedies and fashion new strategies designed to enforce
fundamental rights. It is in this realization of this constitutional obligation that this court has
innovated new methods and strategies particularly for enforcing the fundamental rights of the poor
and disadvantaged who are denied their human rights and to whom freedom and liberty have no
meaning.

Hence, it is humbly submitted that since there has been a violation of the fundamental rights, the
Court has the requisite jurisdiction to entertain this writ petition under Article 32 of the Constitution
of India bought as a Public Interest Litigation.
 1.4 There is no requirement for the Petitioner to exhaust local remedies / ALTERNATIVE
REMEDY DOES NOT BAR ISSUE OF WRIT UNDER ART. 32

a) The right under Art. 32 is not subject to the exhaustion of local remedies

1.4(1) The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a
fundamental right enshrined in Art. 32(22). In Prem Chand Garg, it was held that this right is absolute

(18) Daryao v. State of UP, AIR 1457, (SC 1961

(19) Federation of Bar association in Karnataka v UOI, AIR 344, (SC 1981)
(20) Janata Dal v H.S. Chaudhary AIR 1993 SC 892
(21) AIR 814, (SC 1984)
(22) Indian Constitution Article 32
MEMORIAL ON BEHALF OF THE PETITIONER

And may not be impaired on any ground(23). Further, unlike in Art. 226, the remedy provided by Art.
32 is a fundamental right and not merely a discretionary power of the Court (24). Moreover, this
Hon’ble Court has on multiple occasions expressly rejected an argument that called for exhaustion of
local remedies(25). Therefore, it submitted that it is not open to this Court to carve out exceptions
when there are none in the text.

1.4(2) Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32 (26).
Consequently, if a violation of Art. 32 takes place by this Court's rejection of the instant petition, the
petitioners will have absolutely no remedy for such violation of their fundamental right. Hence, the
Petitioner submits that a liberal approach should be adopted, erring on the side of caution, in cases
where the Court rejects a petition under Art. 32.

b) The rule of exhaustion of local remedies is not binding on this Hon'ble Court

1.4(3) Admittedly, cases such as Paul Manickam (27), Kanubhai(28), and PN Kumar(29) require the
exhaustion of local remedies before approaching the Court under Art. 32. However, it is submitted
that this Hon'ble court must not be constrained by these decisions for the following reasons: First,
this self- imposed restraint is merely a rule of convenience and discretion (30) and does not oust the
jurisdiction of this Court under Art. 32. (31)
Secondly, these cases are per incuriam as they were
rendered in ignorance of previous decisions by higher benches of this Hon'ble Court that expressly
rejected such a rule. Finally, Art. 32(4) specifically provides that this right may not be suspended
except by a constitutional provision. (32)
A rule of self-imposed restraint by the judiciary that requires
exhaustion of local remedies constitutes an extra-constitutional partial suspension and is therefore,
unconstitutional.

(23) Prem Chand Garg v. Excise Commissioner, AIR 996, (SC 1963)

(24) Daryao v. The State of Uttar Pradesh, AIR 1457, (SC 1961); Tilokchand Motichand v. H.B. Munshi, AIR 878,(SC 1970)
(25) Kharak Singh v. State of Uttar Pradesh, AIR 1295, ( SC 1963); Romesh Thappar v. The State of Madras, AIR 124, (SC 1950)
(26) Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR 768,( SC 1960); Naresh Shridhar Mirajkar v. State of
Maharashtra, AIR 1, (SC 1978)
(27) Union of India v. Paul Manickam, AIR 4622, ( SC 2003)
(28) Kanubhai Brahmbhatt v. State of Gujarat, AIR 1159, ( SC 1987)
(29) P. N. Kumar v. Municipal Corporation of Delhi,4 SCC 609, ( SC 1987)
(30) State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958)
(31) Mohammed Ishaq v. S. Kazam Pasha, 1 SCC (Cri.) 721
(32) India Constitution. Art. XXXII, ¶ 4
 MEMORIAL ON BEHALF OF THE PETITIONER

ARGUMENTS ADVANCED

II : Whether Section 497 of IPC read with Section 198(2) of CrPC is unconstitutional?

2.1 Section 497 of the Indian penal code read with section 198(2) of the code of criminal
procedure violates the fundamental rights guaranteed under article 14 and 15 of the
constitution.

2.1(1) It is humbly submitted that the law confers equal right on man and women under Article 14,
which also grants both men and women equal protection of law. Section 497 criminalizes adultery
based on a classification on the grounds of sex and marital status of the women. It is submitted that
such classification bears no rational nexus with the objects sought to be achieved and hence is
discriminatory, disproportionate, manifestly arbitrary, and does not further any legitimate state
interest.

2.1(2) Section 497 negates equal treatment of the law and discriminates on the ground of sex and
marital status by treating equal unequally for the following reasons-

(a). The consent or willingness of the women is irrelevant to the offence, but it is the lack of consent
or connivance of the husband, which is considered material

(b). Section 497, IPC read with section 198(2) CrPc gives the man the sole right to lodge a complaint
and precludes a woman from initiating criminal proceedings thereunder

(c). Sexual relation by a married woman with an unmarried or married man are criminalized, whereas
those of a married man with an unmarried woman do not invoke any criminal sanction.

2.1(3) in W. Kalyani V. Sate (2012) , the honourable court itself has recognised the gender bias
(36)

evident in the provision, as follows: “ The provision is currently under criticism from certain quarters
for showing a strong gender bias for it makes the position of a married woman almost as a property
of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section
that only a man can be proceeded against and punished for the offence of adultery.” Indeed, the
Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact
that the appellant is a woman makes her completely immune to the charge of adultery and she cannot
be

(36) (2012) 1 SCC 358

MEMORIAL ON BEHALF OF THE PETITIONER

proceeded against for that offence

2.1(4) section 497 is also contrary to the obligations of India under ICCPR and the convention on
Elimination of all forms of discrimination Against Women 1970 (CEDAW). Article 23(4) of the
ICCPR, obligates state to “Take appropriate steps to ensure equality of rights and responsibilities of
spouses as to marriage, during marriage and its dissolution.

2.1(5) Similarly, Article 16 of CEDAW requires the state to ensure equality and eliminates
discrimination against women in all matters relating to marriage. Article 1 of CEWDAW prohibits
any restriction on the basis of sex and marital status. The UN working group on discrimination
against women in law and practice, has also called for decriminalization of adultery based on the
rights enshrined under CEDAW, as the law stands to be discriminatory and even in jurisdiction where
the law is gender neutral, they are usually invoked to the detriment of women (37).

2.1(6) in the landmark decision of Anuj Garg V hotel Association of India (38), this Hon’ble court,
declared section 30 of the Punjab excise act 1914, as ultra vires Article 14,15 and 21 of the
constitution, read with the provisions of CEDAW. In a judgement that forms perhaps one of the best
expositions of the gender equality, autonomy and self-determination in the current context, this
hon’ble court held as follows:

“The makers of the Constitution intended to apply equality amongst men and women in all spheres of
life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was
sought to be achieved. “

When a discrimination is sought to be made on the purported ground of classification, such

classification must be founded on a rational criterion. The criteria which in absence of any
constitutional provision and, it will bear repetition to state, having regard to the societal conditions as
they prevailed in early 20th century, may not be a rational criterion in the 21st century

2.1(7) in the light of the above, an offense based on the age- old concept of wife being the property of
husband, who can easily fall prey to seduction by another can no longer be justified as a rational basis
for the classification inherent in section 497. It denies a married woman from equality of autonomy
and opportunity in terms of her sexual choices and partners by subjecting such partners to criminal
prosecution, while a married man and or an unmarried woman are free to excise their personal
choices without fear of the law. This provision imposes additional onerous and punitive restrictions in
a

(37) UN Human Rights Special Procedure, working Group on the issues of discrimination against Women in Law and Practice, Oct 2012 (38)
(2008) 3 SCC 1
MEMORIAL ON BEHALF OF THE PETITIONER

woman, depending on her marital status and gender, despite shielding her from actual prosecution
and hence falls foul of the fundamental rights to equality enshrined in article 14 of the constitution.

2.1(8) the supposed protection given to women under section 497 not only highlights her lack of
sexual agency, but also ignores the social repercussions of such an offense on her. As a moral offense,
adultery has been targeted mostly against married women while the dalliance of married man is either
ignored or excused.

2.1(9) in Anuj Garg, the hon’ble court warned that “It is to be borne in mind that legislations with
pronounced "protective discrimination" aims, such as this one, potentially serve as double edged
swords. Strict scrutiny test should be employed while assessing the implications of this variety of
legislations. Legislation should not be only assessed on its proposed aims but rather on the
implications and the effects. The impugned legislation suffers from incurable fixations of stereotype
morality and conception of sexual role.”

No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom
is a fundamental tenet which can not be compromised in the name of expediency until unless there is
a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial
review in such cases.

2. 1(10) the offence of section 497 is used to stifle a woman’s freedom to choose her sexual
partners, imposes upon her a stereotype morality and conception of sexual role and hence perpetuates
her oppression.

2.2. No Rational Nexus To Be Its Purported Objects

2.2(1) As per the counter affidavit filed on behalf of Union of India, the object sought to be achieved
by retaining S.497 of the IPC is preserving the institution of marriage. It is submitted that this
contention of the state is completely misconceived and overlooks the historical origin of the offense.
The object of the offense was never the preservation of marriage, but the preservation of proprietary
right of a husband over his wife. Also, extra marital affairs by men outside the marriage which are
equally destructive of the marriage are exempt from the purview of the offense.

MEMORIAL ON BEHALF OF THE PETITIONER

2.3 Manifest Arbitrariness: -

2.3(1) in Shyara Bano V. union of India (38), this hon’ble court recognized manifest arbitrariness as a
test to determine the vires of law. The test was described in the following words: -

“Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally
and/or without adequate determining principle. Also, when something is done which is excessive and
disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that
arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate
legislation as well under Article 14.”

2. 3(2) it is apparent that section 497 of the IPC was included on the whims and caprices of the
British colonizers, based on the reasons which are completely irrational and disclose no determining
principles. Section 497 goes against the grain of the modern notions of sexual autonomy, equality of
opportunity to form sexual association and the right to privacy of woman and put a man on trial for
engaging in consensual sexual relations with her, merely because she is married. Marriages are better
saved through personal relationship and fostering reconciliation. Criminal sanction of a third part for
what is essentially a private, intimate, and consensual act, under the pretext of saving marriage, is
tantamount to use of a machete where, what is required is a balm. This is therefore completely
disproportionate to the aim it seeks to achieve.

In the view of the above, it is submitted that section 497 suffers from the vice of manifest
arbitrariness and hence must be struck down.

2.4 Section 198(2) of CrPC is also blatantly discriminatory provision in the sense that it is
the husband alone or somebody on behalf of the woman can file a complaint against the man.
Consequently section 198(2) of CrPC has also to be held constitutionally infirm as it treats men
and women unequally.

2.5 section 497 of the Indian penal code read with Section 198(2) is violative of Article 21 of
the constitution.
2.5(1) it is humbly submitted that consensual sex falls within the ambit of sexual privacy of an
individual, and hence should not be penalised. The civil consequence of the act is already given in the
form of divorce under the personal law. Such an interference by the state in extreme personal matter

(38) (2017) 9 SCC 1

 MEMORIAL ON BEHALF OF THE PETITIONER

ARGUMENTS ADVANCED

II : Whether the exception granted to married women under section 497 of IPC violates the
fundamental rights of adulter guaranteed under the Indian Constitution?

It is humbly submitted before the hon’ble supreme court that the exception granted to married women
from prosecution under the section 497 IPC is violative of fundamental rights of adulterer guaranteed
under the constitution of India and is not protected by article 15(4) of the constitution of India.

3.1 Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in
the garb of protecting women.

3.1(1) It is humbly submitted that this exception is contrary to the remedy which Article 15(3) sought
to embody. Section 497 exempts a woman from being punished as an abettor. The exception seeks to
be justified on the grounds of being a provision that is beneficial to women and protected under
article 15() of the constitution.

3.1(2) the constitutional guarantee in Article 15(3) can’t be employed in a manner that entrenches
paternalistic notions of protection”. This view of protection only serves to place a woman in a cage,
discrimination which is grounded in paternalistic and patriarchal notions can’t claim the protection of
Article 15(3).

3.1(3). In Yusuf Abdul Aziz V. State of Bombay , the Bombay high court, relied upon the carte
(41)

blanche approach to Article 15(3):

In this case, the supreme court rejected a constitutional challenge to the adultery provision in the IPC
which is asymmetrical in that women can’t be prosecuted for adultery. The court upheld the law by a
simple invocation of article 15(3), ignoring the fact that the basic of the adultery provision was
precisely the kind of stereotypical gender-based assumptions that the constitution intended to do
away with it, that women are passive partners lacking sexual autonomy. This inattention to how Art
15(3), ought not to end up becoming a shield to perpetuate sexual and gender – role-based
stereotypes has plagued he court’s jurisprudence ever since.

3.1(4) in State of Madhya Pradesh V. madan lal (42), the court held that ;

“Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think
of painting it in clay. There cannot be a compromise or settlement as it would be against her honour
which matters the most. It is sacrosanct”
(41) AIR 1951 Bom 470
(42) (2015) 7 SCC 681
MEMORIAL ON BEHALF OF THE PETITIONER

moreover, Article 15(3) is not a standalone constitutional provision, but nested with in the Article
14,15,16 equality scheme. The use of the phrase “nothing in this Article”, as a precursor to Art 15(3)
suggests that the goal of such classification mush also fit with in the concept of equality. Article 15(3)
doesn’t exist in isolation. Article 14-18, being constituents of a single side on equality, supplements
each other and incorporate a nondiscrimination principle.

3.1(5) Consequently, laws making “special provisions” for women and children ought to be judicially
received for whether or not they bear some connection with remedying the historical and structural
subordination of women, however, this form of reasoning has been entirely absent from the Indian
sex discrimination jurisprudence.

3.1(6) The same was endorsed by the 5th law commission which recommended that the wife, who
has sexual intercourse with a person other than her husband, should be punished for committing
adultery as the reasons that prompted authors of the penal code in the 19th century for exempting her
from punishment are “not valid” and there is hardly any justification for not treating the guilty par
alike(43). Again in 2003, the justice Mallimath Committee also suggested that suitable amendments to
section 497, IPC should be made to bring adulterous women with in the purview as the object of
section 497 is to preserve the sanctity of marriage (44).

3.3(7) Hence article 15(3) doesn’t not protect a statutory provision that entrenches patriarchal notions
in the garb of protecting women. It is vehemently argued that special provisions can be made for
women as under Article 15(3) of the constitution, but same cannot be used to give them a license to
commit and abet crimes. Any provisions which prohibits punishment is tantamount to a license to
commit the offense of which punishment has been prohibited.

3.1(8) Also in Roopchand adalka v. Delhi development authority (45), it was held that "To overdo
classification is to undo equality". Furthermore, the judgement in Yousaf Abdul Aziz V state of
Bombay applies a constitutional provision which is obviously in applicable as Article 15(3) which
states that nothing in this article shall prevent the state from making a special provision for women”,
would refer the “state” as either parliament to state legislation or the executive government of the
Centre or states, set up under the constitution after it has come in to force. Section 497 in
constitutional language, an existing law which continues, by virtue of Article 372(1) to apply and
could not therefore be said to be law made by the state.

3.1(9) thus, only such provisions can be made in favor of women under article 15(3) as are
reasonable and which do not altogether obliterate or render illusory the constitutional guarantee
mentioned under article 16(2) (46).

3.1(10) ordinarily criminal law proceeds on gender neutrality but in this provision, as we perceive,
the said concept is absent. The criminal law intends to have a gender-neutral approach.
(43) Law Commission of India, 42nd Report The Indian Penal Code, Govt of India 1972
(44) Ministry of Home Affairs, Committee on Reforms of Criminal Justic System, Govt of India, 2003 para 16 (45) 1989 AIR 307
(46) M P Jain, Indian Constitutional Law.
MEMORIAL ON BEHALF OF THE PETITIONER

recalling the historical background of section 497 and then prevailing social conditions along with
sexual mores oppressive to women, the High Court of Bombay in Yousaf Abdul Aziz v State of
Bombay(47) held that

“ what led to the discrimination in this country is not the fact that women had a sex different form
that of man, but that women in this country were so situated that special legislation was required in
order to protect them and it was from the point of view that one finds in s. 497 of IPC, a position of
law which takes a sympathetic and charitable view of the weakness of the women in this country.

3.1(11) notably it is observed that these criteria having regard to the societal conditions as prevailed
in early 20th century may not be a rational criteria in the 21st century. Such enforcement of
antiquated social mores has met recent judicial criticism. In 2007 the supreme court declared a
Punjab law prohibiting women from serving alcohol as unconstitutional. In Anuj Garg V Hotel
Association of
India. (48)

3.1(12) Further, according to section 34 of the Indian penal code, “whoever a criminal act is done by
sexual persons in furtherance of a common intention of all, each of such person is liable for the act in
the same manner as if it were done by him alone”.

3.1(13) to attract the application of section 34, there should be the commission of a criminal act by
two or more person with the common intention. There is no doubt in the fact that adultery is done by
tow person, a man and a woman with a common intention i.e.. Sexual gratification. So, both the
parties are liable for the act in the same manner. Thus, absolving women from penal punishment
makes this section arbitrary and hence unconstitutional the provision seems to be quite archaic
especially when there is societal progress.

3.1.(14) it cannot be said that exempting married woman from punishment under section 497 is
incompliance with article 15(3). A beneficial legislation can be one of the empowerments of women
and not for granting a license to commit a crime.

3.1(15) therefore, it is most humbly submitted that exempting married woman from punishment
under Section 497 of IPC is violative of Article 14 and 15(1) and cannot be claimed protection as a
beneficial legislation under article 15(3).

3.1(16) the policies carving out of inequality, favoritism or unfairness attracts constitutional morality.
It is also appropriate to declare section 198(2) of CrPC as unconstitutional as once substantive
provisions goes, the procedural provision has to pave the same path.
(47) 1954 AIR 321
(48) (2008) 3 SCC 1